Questions About Divorce

Kansas City divorce and family law attorney Mark A. Wortman answers your questions about Missouri divorce.

What is uncontested divorce in Missouri?

An uncontested divorce in Missouri is a divorce case that is completely settled on all issues prior to the case being filed. This means that the husband and the wife have agreed upon the division of property and debt, the child custody arrangement, child support, and spousal maintenance (if appropriate). Usually, only one party is represented by an attorney, and the agreements have been reduced to writing and are filed with the court when the case itself is filed. An uncontested divorce is almost always favorable to contested divorce litigation, and is cheaper, faster, and less stressful on the parties and the children.

How long does divorce take in Missouri?

It depends on the county and whether the case is contested. The typical uncontested case in the Kansas City area can be completed in 30-60 days, but a fully contested divorce can take 6 months to 1 year.

How much does divorce cost in the Kansas City area?

This is a difficult question to answer, as every case is different. It also depends on how the attorney charges the case. Uncontested divorce cases are almost always cheaper than contested cases, and fixed fee billing arrangements are almost always cheaper than hourly arrangements. To get a true cost of the case, you usually must meet with your divorce attorney and discuss all of the issues in the case. The complexity of the case a factor, as well as the cooperativeness and reasonableness of the parties. With our Kansas City law firm, we almost always utilize a tiered fixed fee billing arrangement, where all fees are clearly explained up front with no hidden charges or unexpected costs.

Will I have to go to court for my divorce in Missouri?

Most of the time, yes. However, some counties, such as Jackson county (Kansas City, MO), will allow a case to be submitted by affidavit as long as one party is represented by an attorney, there are no children, and all property issues have been resolved by written agreement. Any other type of uncontested case will require a brief court appearance to "make a record" of the settlement, is basically a formality to conclude the case.

Contested cases usually require multiple court appearances, but depending on the county and the judge, your divorce attorney may be able to handle all appearances for you.

If the case goes to trial, your appearance is always required.

Can I make my spouse pay some or all of my attorney fees?

Missouri courts follow the "American Rule" when it comes to attorney fees and this basically states that each party is responsible for their own litigation costs. However, there is an exception for divorce and family law cases as a statute does authorize attorney fees in some circumstances. In order to justify such an award, misconduct during the marriage or the litigation is usually required, and/or one party makes substantially more income than the other. Most of the time, each party must pay their own attorney fees, but it never stops the parties from making the request.

Can I get spousal maintenance in Missouri?

Spousal maintenance is awarded in Missouri in some cases. There is no formula for the calculation however, and the award of maintenance is determined on a case by case basis. A rule of thumb is that the marriage must be lengthy (10 years or so — but this is not a legal requirement), and there is a large difference in income between the parties. Spousal maintenance is based on need and ability to pay, and is not used as a punishment for misconduct during the marriage. The duration of the maintenance may be limited or unlimited, depending on the circumstances.

How is child support calculated in Missouri?

In Missouri, child support is calculated using the Form 14. The Form 14 is a formula generates a "presumed" amount of child support that the court will usually adopt. However, under the right circumstances, a Missouri Court can reject the Form 14 amount and order any other child support amount deemed appropriate. Also, the parties are free to agree to any amount of child support that they want, as long as the court believes that the children will be financially taken care of. The Form 14 calculation includes the following: incomes of the parties, other child support or maintenance orders, health insurance premiums, uninsured medical costs, daycare costs, extracurricular activity expenses, other extraordinary expenses, a credit for the number of overnights the non-custodial parent has, and other factors.

Is a spouse or cohabitant's income considered for child support?

Generally, a spouse or cohabitant's income is not included in a child support calculation. However, in some limited circumstances, such as if one of the parents claims no income because they are supported by a spouse or cohabitant, the court might impute some or all of that income to the parent.

Can my spouse avoid child support by claiming that he or she is unemployed?

No. If a person is unemployed or underemployed, the courts in the Kansas City area can and usually will "impute," or assign, an amount of income to that person, and require child support to be paid anyway. The court may be somewhat lenient in allowing the person time to become employed, but the position of almost every Kansas City area court is that a child requires financial support, and the parents must find income to satisfy the obligation.

Who gets the house in a Missouri divorce?

There are usually only three options when it comes to the house: the wife receives the house and pays out the husband's share of the equity to the husband; the husband receives the house and pays the wife her share of the equity; or the house is sold and the profit and loss are split in some ratio. The court will usually first look to see if one of the spouses wants and can afford the home, and will also consider how the award of the home would affect the children.

How is child custody determined in Missouri?

In Missouri, there is a very strong preference for joint legal (decision making) and joint physical (sharing time with the children) custody arrangements. Note that this does not mean 50/50 parenting time, as there are many different types of schedules under a joint custody arrangement. The court usually defers to the parents in what is in the interests of the children, and there is strong preference among Kansas City area judges that the mother and father come to an agreement regarding custody. If this cannot be done, then the court will determine custody by examining the following: Wishes of the parents, stability of the parents, the need for frequent and meaningful contact with both parents, wishes of the child (if appropriate), the ability of the parents to adequately parent the children, the safety of the home, the parents' work schedules, any history of physical or emotional abuse against any person including the child, any physical or mental conditions that may affect custody, and any other relevant factors.

Can I request a DNA test for paternity during divorce?

Yes. If paternity is in question, then it is imperative that the issue be raised in the divorce. The court will always grant the request as long as there is a reasonable basis for it, and it will probably divide the cost equally between the parties. If paternity is an issue and it is not made part of the divorce case, once the divorce is granted, the child is deemed to be that of the husband, and it will be very hard, if not impossible, to undo later.

Can I request a drug test as part of a Missouri divorce or custody action?

Yes. If there is a concern that one of the spouses is using drugs, then a drug test can be ordered in a Missouri divorce or custody case. However, there usually must be children involved and the alleged drug use must have some effect on parenting ability. Also, a drug test isn't often that effective unless it is done with little or no advance notice, and a party to the case should not ask for a drug test unless they are certain that it will come back positive. Otherwise, the requesting party's credibility may be damaged.

Can I request a mental exam as part of a Missouri divorce or custody action?

Yes, a mental exam may be ordered during a divorce or custody proceeding, but Missouri courts do not take these requests lightly. There must be a compelling reason to ask for a mental exam, and a party's mental health must be at issue to begin with. Many times, if a request for mental exam comes up, the court will order both spouses to undergo the exams.

What is no fault divorce in Missouri?

Missouri is a modified no-fault divorce state. This means that fault or misconduct does not need to be proven to get the divorce itself. The only proof must be that the marriage is "irretrievably broken." However, this does not mean that misconduct is not relevant. A spouse's "fault" or misconduct during the marriage can be a factor supporting an unequal division of property in favor of one party, the award of attorney fees, or indirectly, the amount of spousal maintenance.

How is property divided in a Missouri divorce?

In Missouri, property is characterized as either marital or non-marital property, and this applies to real estate, personal property, vehicles, retirement plans, bank accounts, debts, and any other type of property. Marital property is any property acquired between the date of the marriage and the date of the divorce. Non-marital property is any property that was owned prior to the marriage, or acquired during the marriage by gift or inheritance. Note that sometimes non-marital property can become marital property, or non-marital property can have a marital component. Non-marital property will be awarded to the party who owns it, and marital property and debt is usually divided equally. However, marital misconduct or other factors occasionally can justify an unequal division.

What is mediation and how does it play into my divorce case?

Mediation is an out of court process where a third party attorney who is certified as a mediator will help the spouses come to an agreement on any unresolved issues. Most Kansas City area courts will require mediation to be completed before certifying the case for trial in a contested divorce case involving child custody. Mediation can also be used prior to filing the case to help the parties proceed with an uncontested case. A mediator does not represent either party, and cannot file the divorce case. Also, a mediated agreement is not binding until reduced to a settlement agreement and approved by the court.

Can we both use one attorney in a Missouri divorce?

Yes and no. In most uncontested divorces, only one attorney is involved, but that attorney can only represent one party. The other party is technically unrepresented, and the attorney involved is not the attorney of record for both spouses. However, a skilled divorce attorney will be able to still assist the unrepresented party with working through the case, as well as answer their questions, without actually providing legal advice to that party or breaching their attorney-client relationship with the client.

I am unhappy with my attorney, can I change attorneys during a Missouri divorce?

Yes, you are always free to change attorneys and you can have any attorney you wish represent you. However, it is important to consider that changing attorneys in the middle of the divorce case will cost more money (since you are paying two attorneys), and depending on the stage of the proceeding, may directly affect the new attorney's ability to adequately represent you in the case. It is far better to choose the right attorney from the very beginning, but if a change is required, it is usually permitted by the court.

How is annulment different than divorce in Missouri?

In Missouri, a divorce proceeding is used to end a lawful, valid marriage. An annulment, on the other hand, ends a marriage that was not valid to begin with. If a marriage is declared null and void, it is as if it never existed in the first place. An annulment is only granted in very limited situations, such as in the cases where spouses are relatives, bigamous marriages, lack of mental capacity, fraud of an intimate nature, duress, a spouse is underage, and a few other reasons. Note that an annulment will not be granted simply because the marriage is of short duration, and annulment proceeding is not cheaper or faster than a divorce.

My ex spouse is not following the divorce decree, what can I do?

It depends on what part of the court order is not being followed. For child support matters, enforcement actions can be initiated by the prosecutor's office or the Family Support Division, or by the custodial parent in a civil contempt action. For child custody violations, enforcement can include contempt of court, family access motions, or even habeas corpus actions. For property or maintenance issues, civil contempt is the primary remedy. Contempt of Court can result in a party being incarcerated until the contemptuous actions are remedied.

What happens if abuse or neglect of a child is alleged in a divorce or custody action?

In all cases where abuse and/or neglect of a child is alleged by one or the parties, a Missouri court is required to appoint an attorney to represent the best interests of the child. This attorney is called a Guardian Ad Litem. The Guardian Ad Litem will talk to both parties and the child, visit the homes of both parents, gather medical records, speak to school personnel, social workers, law enforcement, therapists, counselors, and any other relevant parties, and will conduct an investigation into the allegations of abuse or neglect and make recommendations to the court based on the findings. The appointment of a Guardian ad Litem will add significant cost to the case, and the mother and father will be required to pay for the services of the guardian. Despite the costs, a Guardian Ad Litem can be invaluable to the case, and has a great deal of influence on the court's decision.

Is a Missouri divorce decree modifiable?

All matters involving the children are always modifiable based on a showing of changes in circumstances. This includes child support, custody, and visitation. Also, spousal maintenance is modifiable unless it has been specifically designated as non-modifiable maintenance. Property and debt orders are final and not modifiable.

What types of custody are there in Missouri?

Child custody is divided into two categories in Missouri, legal custody and physical custody. Legal custody deals with decision making rights and responsibilities, whereas physical custody deals with who has the children and when. There is an overwhelming preference for joint legal and joint physical custody. Under a joint legal custody arrangement, both parents have an equal say regarding decisions for the children, such as education, healthcare, discipline, religion, and all other important decisions. Note that the day to day routine/care decisions are made by the parent who actually has physical custody at the time. In a joint physical arrangement, both parents share time on some sort of schedule, but that schedule is not 50/50 unless that is agreed by the parties. It is important to note that there are many different parenting schedules under a joint physical custody arrangement, and joint physical custody simply means that both parents have time with the children. There is no such thing as "full custody" in Missouri, although one parent will be designated for education and mailing purposes as the custodial parent. In limited circumstances, sole legal or sole physical custody can be awarded to one parent, which would exclude the other parent from decision making, physical parenting time, or both.

What goes into a parenting plan in Missouri?

parenting plan contains all of the terms of the parenting arrangement that is either agreed upon by the parties or decided by the court. Either way, the parents are ordered to comply with the terms of the plan. A parenting plan will provide for legal and physical custody, child support, parenting guidelines, parenting schedule, transportation duties, health insurance, daycare, non-covered medical care, extracurricular activities, education, income tax deductions, restrictions on relocation, and any other relevant parenting provisions.

Is it ok for me to leave the house if I am getting divorced?

With regard to the home itself, it is ok to leave the home during your divorce, as the spouse that moves out does not give up any marital interest, and it is not abandonment per se. However, if there are children involved, moving from the home can have a huge effect on the custody case, and no decision to move out should be made without first consulting with a divorce attorney.

Is it better to be the first to file for divorce in Missouri?

Being the first to file for divorce does have some advantages, although in most cases it is not particularly relevant. In Missouri, whomever has the children at the time the case is filed is deemed to have temporary custody of the children, which can be an advantage. Also, if the case ends up going to trial, the person who files first (called the Petitioner) will get to present their case to the court first, which in many cases is an advantage. Finally, and perhaps most importantly, being the first to file puts pressure on the Respondent to act or face a default judgment.

Does my spouse have to agree to give me a divorce?

No. Consent is not required for a divorce in Missouri.

What if I want to relocate with the children after my divorce?

In Missouri, after a custody order is entered, a party having custody cannot relocate without first notifying the other parent. If the other parent does not object in court in the time required, and the moving parent has met all statutory requirements, then the parent may relocate. However, if the other parent timely objects, then the court will conduct a hearing to determine whether it is in the best interests of the children to relocate. Also, the children cannot be moved out of Missouri while a case is pending, absent agreement or order of the court.

I want a divorce, but I cannot locate my spouse. What can I do?

If you have made all efforts to locate your spouse, and he or she cannot be found, Missouri courts will allow service by publication in lieu of personal service. This means that an notice is published in a local legal publication or newspaper for a period of 4 consecutive weeks, and if no response is filed, then the other party is deemed to be served, and a default divorce proceeding can then occur. However, it is very important to understand that the only thing the court can do is dissolve the marriage, and award custody of the children if jurisdiction is proper. The court cannot divide property, award spousal support, child support, attorney fees, or any other money judgment. Also, the Petitioner must sign an affidavit and testify as to the reasons the other spouse cannot be located, and the efforts made to locate them.

The choice of a divorce attorney is a critical one. Mark A. Wortman is an experienced Kansas City divorce lawyer practicing throughout Jackson, Platte, Clay, and Cass counties. Contact us to speak to a divorce attorney today.